Concourt justices: Where are SA's corruption busters?

After years of complex legal argument and convoluted
political manoeuvring, justices in the Constitutional Court had a simple
question for lawyers representing the state on Tuesday: where is the dedicated
investigative unit tasked with ridding South Africa of corruption? And if the
Hawks is supposed to be that unit, why can’t Parliament just come out and say
so?

“Why is there not one straight-forward line to say ‘the
task is to tackle corruption’?” demanded deputy chief justice Dikgang Moseneke
of Kemp J Kemp, the advocate representing President Jacob Zuma – while all but
brandishing a copy of the South Africa Police Service Act.

The law, Kemp cautiously allowed, may not always be
clear. But Moseneke did not seem mollified.

“We don’t have a
dedicated corruption-fighting unit,” Moseneke declared later in proceedings, in
reference to a specific section of the law.

In 2011, Moseneke wrote the majority opinion of the
Constitutional Court in a landmark judgment on the independence of the Hawks – a judgment that gave Parliament a right proper scolding.

Hawks still not guaranteed freedomCorruption – the court told the legislature, “threatens to
fell at the knees virtually everything we hold dear and precious in our
hard-won constitutional order” – has an inordinate impact on the poor and the
vulnerable, and has to be addressed in a manner commensurate with its danger.

That judgment, on a complaint brought by businessperson and activist Hugh
Glenister, demanded that Parliament make the Hawks into a more effective
corruption-busting tool, one less subject to being called off by, say, a
president or a member of his Cabinet.

Parliament complied, at least in the sense that it
amended the law, but on Tuesday the matter was back before the Constitutional Court, with
the Helen Suzman Foundation – which has since taken the lead in the ongoing
legal battle – arguing that the Hawks are still not guaranteed freedom from political interference.

As the law stands, advocate David Unterhalter told the
court on behalf of the foundation, the minister of police has “a very very deep
power to suspend without pay and then to dismiss” the head of the Hawks.
Or,
suggested advocate Izak Smuts on behalf of Glenister, the politically appointed
commissioner of police could hypothetically load the Hawks with a large number
of nuisance cases if they strayed too close to an important target.

It is even
hypothetically possible, said Constitutional Court justice Edwin Cameron, for the minister
of police to exclude a certain class of political office bearers from some
types of investigations by the Hawks, an assertion to which counsel for the
minister agreed. And by law, the Hawks has a plethora of responsibilities,
Moseneke said, making for a “diffuse” mandate rather than the laser-like focus
it should have.

Yet lawyers for the state argued that there may still be
no need for the court to find the law that establishes the Hawks to be
unconstitutional, and in some instances no mechanism for the court to fix any
flaws that may exist.

‘Struggle to understand’And, in any event, it is not really necessary. Compare
the Hawks to the Scorpions – which was treated as a unit of the National
Prosecuting Authority rather than the police and considered sufficiently
independent – Kemp told the court, and the former would be shown to be at
least as independent as the latter.

Barring that business about the minister’s
ability to remove the head of the Hawks, which is necessary.

But the judges were not of a mind to be persuaded. Why,
asked justice Johann van der Westhuizen, did Kemp’s papers make reference to
the need for the power to discipline a Hawks head who “runs amok”? That kind
of language, Van der Westhuizen said, “sounds a bit sinister”, almost as if it
speaks to an investigator who treads on toes rather than engages in unlawful
activity. And the law authorising the Hawks is not only arguably “vague and
embarrassing”, said chief justice Mogoeng
Mogoeng, but nearly impenetrable.

“If judges in the highest court in the land struggle to
understand how it operates, how are the police going to understand it?” he
asked rhetorically.

The Suzman Foundation had asked the Constitutional Court to uphold a
previous high court ruling that found parts of the Hawks amendment
constitutionally invalid and also to declare other sections of the law
unconstitutional.

Judgment was reserved.

Phillip de Wet

Phillip de Wet writes about politics, society, economics, and the areas where these collide. He has never been anything other than a journalist, though he has been involved in starting new newspapers, magazines and websites, a suspiciously large percentage of which are no longer in business. PGP fingerprint: CF74 7B0F F037 ACB9 779C 902B 793C 8781 4548 D165 Read more from Phillip de Wet